- 1 - NC: 2025:KHC-D:415 WP No. 121545 of 2020 IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 10TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT PETITION NO. 121545 OF 2020 (GM-CPC) BETWEEN: KHAJA GULAB KORABU AGE ABOUT: 46 YEARS, OCC: AGRICULTURE, R/O: KAGAWAD, TQ: ATHANI, DIST: BELAGAVI. …PETITIONER (BY SRI. M M PATIL, ADVOCATE FOR PETITIONER) AND: GULAB S/O RAJEKHAN KORABU AGE ABOUT: 77 YEARS, OCC: AGRICULTURE, R/O: KAGAWAD, TQ: ATHANI, DIST: BELAGAVI. …RESPONDENT (BY SRI. VIJAY S CHINIWAR, AMICUS CURIAE FOR RESPONDENT) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSITTUTION OF INDIA PRAYING TO; ALLOW THIS WRIT PETITION AND ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER OR DIRECTION TO QUASH THE ORDER DATED 07.09.2019 IN CIVIL MISC.NO.08/2014 PASSED BY THE 1ST ADDITIONAL CIVIL JUDGE AND JMFC, ATHANI VIDE ANNEXURE-J. THIS PETITION, COMING ON FOR PRL. HEARING IN ‘B’ GROUP, THIS DAY, MADE THE FOLLOWING: Digitally signed by MOHANKUMAR B SHELAR Location: High Court of Karnataka, Dharwad Bench - 2 - NC: 2025:KHC-D:415 WP No. 121545 of 2020 CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI ORAL ORDER (PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This writ petition is filed challenging the order passed in Civil Misc.No.8/2014 dated 07.09.2019 by the learned I Additional Civil Judge and JMFC, Athani. 2. Brief facts leading rise to the filing of this writ petition are as under; The petitioner filed a suit in O.S.No.658/2013 for the relief of declaration and permanent injunction. The petitioner and the respondent filed a compromise petition, under Order 23 Rule 3 of CPC. The compromise petition was signed by both the parties and their respective counsel. The compromise petition was accepted and the suit was decreed vide order dated 27.06.2013, and, the compromise decree was signed on 11.07.2013. The respondent filed the petition for recalling the compromise in Civil Misc.No.8/2014 and an application for the - 3 - NC: 2025:KHC-D:415 WP No. 121545 of 2020 condonation of delay of 325 days was also filed in the miscellaneous petition. The said miscellaneous petition was objected by the petitioner by filing the objections. The trial court recording the evidence of the petitioner and the respondent, allowed the petition vide order dated 07.09.2019 and the order dated 27.06.2013 passed in O.S.No.658/2013 was set aside and the order dated 27.06.2013 passed in O.S.No.658/2013 is recalled. The petitioner, aggrieved by the order passed in Civil Misc. No.8/2014, preferred this writ petition. 3. Heard the learned counsel for the petitioner and the learned counsel for the respondent. 4. Learned counsel for the petitioner submits that, the trial court without passing any order on the application for condonation of delay, allowed the miscellaneous petition, filed by the respondent. Hence, he submits that, the procedure adopted by the trial court is illegal. Hence, on these grounds, he prays to allow the writ petition. - 4 - NC: 2025:KHC-D:415 WP No. 121545 of 2020 5. Per contra, learned counsel for the respondent, supports the impugned order. 6. Perused the records and considered the submissions of the learned counsel for the parties. 7. It is not in dispute that, the petitioner filed suit in O.S.No.658/2013 for the relief of declaration and permanent injunction. The petitioner and the respondent filed a compromise petition. The same was accepted by the trial court and accordingly, a compromise decree was drawn. Later, the respondent filed the petition in Civil Misc. No.8/2014 to recall the compromise decree and permit the respondent to contest the case. The respondent made allegations against the petitioner, in regard to service of court notice summons on the respondent. It is contended that, the respondent was doing agricultural work on the suit property through the petitioner and as such, he was cordial with the petitioner. So, the respondent kept on his words and agreed to execute the GPA. The petitioner has taken the signature fraudulently - 5 - NC: 2025:KHC-D:415 WP No. 121545 of 2020 on the vakalath, compromise petition and the order sheet. The petitioner on the basis of the said compromise decree, submitted an application to the revenue authorities to transfer the property in the name of the petitioner. The respondent came to know about the fraud played by the petitioner in obtaining the compromise decree. Thereafter, the respondent filed the criminal miscellaneous petition to recall the compromise decree. There was a delay of 325 days in filing the petition. From the perusal of the cause title, the age of the respondent is shown as 77 years. The respondent was suffering from old age ailments and therefore, he could not file the application within the prescribed period. The respondent has shown the sufficient cause for not filing the petition within the stipulated time. The respondent was examined as P.W.1 and he reiterated the petition averments in his examination-in-chief. Nothing has been elicited from the mouth of this witness to disbelieve his evidence. The petitioner was examined as D.W.1. - 6 - NC: 2025:KHC-D:415 WP No. 121545 of 2020 8. The trial court, considering the age of the respondent has held that, the respondent has shown the sufficient cause in not filing the petition within the time. The trial court has recorded its finding in para 13, which reads as under: “13. On perusal of entire evidence, documents and materials on record, it is seen that, the petitioner being aggrieved by the compromise decree dated 27.6.2013 passed in O.S.No.658/2013 and to set aside the said compromise decree and to recall the said order and to contest that matter. Further the petitioner contended that, the defendant in the intention to grab the aforesaid properties of petitioner, he created, concocted and false oral gift deed dated 18.1.2013 in favour of him and filed suit in O.S.No.658/2013 for the relief of declaration and permanent injunction to declare that, he is the absolute owner of the suit properties on the basis of the said gift deed. The respondent falsely represented him that, he was illiterate, aged and suffering from old age problems and with respect to transport of sugar cane and to deal with the sugar factory and bank matters, he suggested him to execute general power of attorney in favour of him to deal with said deals. Further the petitioner contended that, due to his old age and he was doing agricultural works on the suit property through the respondent, he has cordial relationship with him, so he kept reliance on the words of him and agreed to execute GPA, but the respondent represented him that the said GPA shall be executed in the court and he brought him before the court and fraudulently taken his signature on Vakalat and on the compromise petition and order sheet and fraudulently compromised the matter and as such the decree signed on 11.7.2013. The petitioner further contended that, the respondent on the basis of said decree, on collusion with the revenue authorities tried to mutate his name - 7 - NC: 2025:KHC-D:415 WP No. 121545 of 2020 with respect to the suit properties and with respect to this matter, he was served with notice and upon enquiry with respect to the said notice, he came to know about the fraud committed by the respondent in that suit. The petitioner shows ignorance with respect to that suit, he was not aware of the compromise petition and he never executed alleged oral gift deed in his favour. As such the petitioner contended that, the said compromise decree in O.S.No. 658/2013 is false and not valid and not binding on him. The petitioner further contended that, due to his illiteracy and he was suffering from old age elements, he came to his knowledge regarding the said suit after the lapse of time period. Further the petitioner contended that, he was absolute owner and in possession of the suit properties and on the basis of that compromise decree, the respondent causing interference with respect to the peaceful possession and enjoyment of the suit properties. Hence, prays to protect his possession and to condone the delay of 325 days to file this present petition and prays to recall the said order and permit him to contest the matter. On considering the contention of the petitioner, in prima facie, I opined that, he was ignorance with respect to that compromise decree passed in O.S.No. 658/2013 and the delay is not intentional one and the same is for alleged bonafide reasons, hence the petitioner rightly contended to set aside that compromise decree and to recall the said order, as such an opportunity can be given to the petitioner to contest the matter. Hence, the delay is condoned and I accept the cause shown as sufficient by the petitioner. Accordingly, I conclude that, the petitioner is entitled for the relief as sought for In the present case. Accordingly, I answered point No. 1 in the Affirmative.” 9. The delay was condoned by the trial court, by accepting the cause shown by the respondent. But, in the operative portion, due to inadvertence, the trial court did not mention regarding allowing the application. Though, - 8 - NC: 2025:KHC-D:415 WP No. 121545 of 2020 the trial court, has already recorded its finding that the delay is condoned, it is sufficient to hold that, the trial court has disposed of the application for condonation of delay and has rightly passed the impugned order. I do not find any error in the impugned order. Accordingly, I proceed to pass the following; ORDER The writ petition is dismissed. Sd/- (ASHOK S. KINAGI) JUDGE MBS CT: BSB List No.: 1 Sl No.: 13